K LAXMAN Vs. NAYINI NARASIMHA REDDY

JUDGEMENT

(1.) This petition is filed under Sections 100(1) (d)(ii) and (iv), 101 and 123 of Representation of the People Act, 1951 (RP Act, for brevity) to call for the records relating to and connected with election held on 20.4.2004 for 206 Musheerabad Legislative Assembly Constituency, order inspection and scrutiny of the controlling unit and balloting unit of electronic Voting Machines used at polling station (PS) Nos.91 and 82, order scrutiny and inspection of correlative statements in respect of electoral rolls in P.S.No.82 and declare the petitioner duly elected as Member of A.P. Legislative Assembly after declaring election of first respondent as M.L.A., from the said constituency as illegal, null and void.

(2.) In General Elections 2004, Electronic Voting Machines (EVMs) were used in all the legislative assembly and parliamentary constituencies. In 206 Musheerabad Assembly Constituency, in all 206 EVMs were used. The Election Commission of India (ECI) issued manual of electronic voting machine containing instructions to polling staff and returning officers on the manner of commissioning EVMs and alignment of ballot paper on the face of EVM while preparing EVM for use. Before supplying the EVMs for use at polling stations, Returning Officer has to prepare them in the presence of candidate/agent. The Returning Officer is required to fix the date on which preparation of EVM is to be taken up by him at least one week before the date of polling and give notice in writing to each candidate or his election agent intimating the place, date and time of preparation of EVMs. While preparing the balloting unit of EVM, Returning Officer has to insert the ballot paper, masking candidate buttons which are not required to be used, set slide switch at appropriate position i.e., 1, 2, 3 or 4 as the case may be, according to number of such units which are to be used depending upon the number of candidates and sequence, in which they are to be used and seal the unit. If all these operations are not executed meticulously and systematically, there would be improper reception of votes. If the ballot paper is improperly placed with wrong alignment overlapping of symbols or without symbols corresponding with serial number or name of candidate, the votes would be registered wrongly. The Returning Officer did not issue any prior notice to petitioner or his agent notifying the date, time and place of preparation of EVMs and they were not prepared for use in the presence of petitioner or his agent. EVMs are not tested in the polling booths and mock polling was not conducted in P.S.No.91 in the presence of petitioner or his agent. On 20.04.2004, the polling day, polling could not take place as per schedule at 7.00 am., on account of malfunctioning of EVMs. At P.S.No.91, polling could commence at 7.45 am., on account of malfunctioning of EVM.

(3.) On receiving information about non-functioning of EVMs in P.S.Nos.90, 91, 94, 97, 38 and 47, the petitioner intimated to the Vice President of BJP, Hyderabad, by telephone, who is also election agent of the petitioner. He in turn faxed a letter at 9.14 a.m. to Chief Election Officer, Government of Andhra Pradesh, Hyderabad, request to arrange for rectification of EVMs at these polling stations. A copy of the letter was also faxed to returning officer. No steps were however taken and consequent upon non-functioning of voting machines in some booths polling was delayed by 30 minutes to one hour twenty minutes. The Vice-President of BJP once again faxed letter to Chief Election Officer at 10.08 am stating that due to non-functioning of EVMs in booth Nos.90, 91, 94, 97 and 48, there was delay in commencement of polling by 45 minutes, 45 minutes, one hour twenty minutes, one hour and 30 minutes respectively. It was also brought to notice of Chief Election Officer that in booth No.38 lights to the EVMs are not functioning. Because of this voters were compelled to exercise their franchise in those booths where EVMs were not functioning properly.